Citation Nr: 0524244
Decision Date: 09/02/05 Archive Date: 09/13/05
DOCKET NO. 00-05 977 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUES
1. Entitlement to service connection for lumbar spine
arthritis.
2. Entitlement to service connection for right knee
arthritis.
3. Entitlement to service connection for left knee
arthritis, with residuals of a proximal tibia fracture.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Taylor, Counsel
INTRODUCTION
The veteran had active service from July 1967 to July 1970.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from rating decisions of the Anchorage,
Alaska, VA Regional Office (RO).
This case has previously come before the Board. In September
2003, the matters were remanded to the agency of original
jurisdiction (AOJ) for additional development. The case has
been returned to the Board for further appellate review.
FINDINGS OF FACT
1. A lumbar spine disorder was not manifest in service or
within one year of separation and is not attributable to
service.
2. A right knee disorder was not manifest in service or
within one year of separation and is not attributable to
service.
3. A left knee disorder was not manifest in service or
within one year of separation and is not attributable to
service.
CONCLUSIONS OF LAW
1. A lumbar spine disability was not incurred in or
aggravated by service and arthritis may not be presumed to
have been incurred during service. 38 U.S.C.A. §§ 1101, 1110,
1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309
(2004).
2. A right knee disability was not incurred in or aggravated
by service and arthritis may not be presumed to have been
incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
3. A left knee disability was not incurred in or aggravated
by service and arthritis may not be presumed to have been
incurred during service. 38 U.S.C.A. §§ 1101, 1110, 1112,
1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
Initially, the Board notes there has been a significant
change in the law with the enactment of VCAA. 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002).
First, VA has a duty to notify the claimant and the
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103. VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim, (2) that VA will seek to provide,
and (3) that the claimant is expected to provide. In what
can be considered a fourth element of the requisite notice,
VA must "also request that the claimant provide any evidence
in the claimant's possession that pertains to the claim."
38 C.F.R. § 3.159(b)(1); see 38 U.S.C.A. § 5103A(g). VA has
satisfied its duty to notify by means of a letter from the RO
to the appellant in June 2004.
In this case, the claimant was informed of the duty to
notify, the duty to assist, to obtain records, and
examinations or opinions. The claimant was specifically
advised of the type of evidence which would establish the
claims and the claimant was afforded additional time to
submit such evidence. Thus, the claimant has been provided
notice of what VA was doing to develop the claims, notice of
what the claimant could do to help the claims and notice of
how the claims were still deficient. The appellant was also
provided notice that he should submit pertinent evidence in
his possession per 38 C.F.R. § 3.159(b)(1). He was advised
of how and where to send this evidence and how to ensure that
it was associated with his claims.
The Board notes the notice of VCAA did not predate initial
adjudication of the claim. The claimant, however, was
provided notice which was adequate. Following the June 2004
notice, the May 2005 supplemental statement of the case
issued constituted subsequent process. The appellant has not
shown how any error was prejudicial. Moreover, the essential
fairness of the adjudication was not affected. Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
Thus, in sum, the claimant was informed of the duty to
notify, the duty to assist, to obtain records, and opinions.
The claimant was specifically advised of the type of evidence
that would establish the claims. The claimant has been
provided notice of what VA was doing to develop the claims,
notice of what the claimant could do to help the claims and
notice of how the claims were still deficient.
Second, VA has a duty to assist the claimant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A. In the instant case, VA has made efforts to develop
the record. The records satisfy 38 C.F.R. § 3.326. VA
examination reports are on file. The Board finds that VA has
done everything reasonably possible to assist the claimant.
Accordingly, the Board concludes it should proceed, as
specific notice as to what evidence the claimant could or
should obtain has been provided in effect and no additional
pertinent evidence was submitted. There is no indication
that there is any additional relevant competent evidence to
be obtained either by the VA or by the claimant, and there is
no other specific evidence to advise him/her to obtain. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that
both the statute, 38 U.S.C. § 5103(a), and the regulation, 38
C.F.R. § 3.159, clearly require the Secretary to notify a
claimant which evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by the
Secretary). The claimant has had sufficient notice of the
type of information needed to support the claims and the
evidence necessary to complete the application. Therefore,
the duty to assist and notify as contemplated by applicable
provisions, including VCAA, has been satisfied. As such, the
Board finds that the development requirements of the VCAA
have also been met. VA has done everything reasonably
possible to assist the claimant. Accordingly, appellate
review may proceed without prejudice to the claimant. See
Bernard v. Brown, 4 Vet. App. 384 (1993).
In the circumstances of this case, a remand would serve no
useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
claimant are to be avoided). VA has satisfied its duties to
notify and to assist the claimant in this case.
Criteria & Analysis
The veteran has appealed the denial of service connection for
disabilities of the lumbar spine, right knee and left leg.
Service connection may be established for disability
resulting from disease or injury incurred in or aggravated by
service. If the disability is arthritis, service connection
may be established if manifest within one year of separation
from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38
38 C.F.R. §§ 3.303, 3.307, 3.309. For the showing of chronic
disease in service, there is required a combination of
manifestations sufficient to identify the disease entity and
sufficient observation to establish chronicity at the time,
as distinguished from merely isolated findings or a diagnosis
including the word "chronic." 38 C.F.R. § 3.303(b) (2004).
When the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. Service connection may be
also granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Service connection connotes many factors, but basically, it
means that the facts, as shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service. A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease in service. See Pond v.
West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App.
309, 314 (1993).
A preponderance of the evidence is against the claim for
service connection for lumbar spine arthritis, right knee
arthritis, and left knee arthritis with residuals of a
proximal tibia fracture. It is clear that the veteran has
evidence of post-service disability. A recent VA examination
disclosed the presence of moderately severe degenerative
arthritis of the right knee, a probable valgus osteotomy of
the left knee, and degenerative changes of the lumbar spine.
The veteran asserts that his disabilities are due to in-
service injuries or his in-service job duties. Furthermore,
in February 1999, Dr. J. A. B. opined that there was
certainly some possibility that the heavy work he did during
service, under the difficult conditions he was in at the
time, was in some way related to the current musculoskeletal
complaints.
Not all the evidence, however, is positive. The service
medical records are negative for complaints findings or
manifestations of knee, leg or lumbar pathology. At time of
separation, the veteran specifically denied back and knee
complaints and the examination disclosed that the spine and
musculoskeletal system were normal. The Board also notes
that there is no competent evidence of knee, leg or lumbar
pathology within 1 year of separation from service or within
10 years of separation from service. The favorable statement
by Dr. J. A. B. must also be tempered by the fact that he
admits his initial treatment of the veteran was in 1998, and
that it was difficult to ascertain whether there was a direct
link between the veteran's arthritis and previous service.
The determination of the Board is further supported by the
opinion of a VA examiner in 2004. That examiner established
that he had reviewed the files and had obtained a medical
history from the appellant. It was the examiner's impression
that the degenerative disc disease and arthritis of the
lumbar spine and degenerative arthritis of the right and left
knees was neither proximately due to nor the result of the
veteran's foot conditions. The examiner also noted that
repeated heavy use of the back and knees does lead to
degeneration of disks and low back and degenerative
arthritis. There is, however, no documentation that the
veteran was evaluated for lumbar or knee conditions in the
service.
To the extent that there has been an assertion of secondary
service connection, the Board notes that the February 2004 VA
examiner specifically stated that the appellant's lumbar
spine disability and arthritis of the right knee and left
knee was not proximately due to the service-connected foot
disabilities and not aggravated by the service-connected foot
disabilities.
The Board finds that the most probative evidence consists of
the contemporaneous service records and the opinion of the
2004 VA examiner. Such records establish that pertinent
pathology was not present during service and was specifically
denied by the veteran during that time frame. Furthermore,
although the VA examiner notes that heavy use of a joint may
lead to disk and arthritis pathology, there was no
documentation of such during service. Such evidence is far
more probative than the opinion of the private doctor that is
stated in terms of the realm of possibility.
To the extent that the veteran believes that his remote
disabilities are due to service, he is not a medical
professional and his opinion is not competent. To the extent
that he claims continuity of pain symptoms since service, his
statements are unsupported and contradicted by the
contemporaneous record, including his denial of symptoms at
the time of separation. The preponderance of the evidence is
against the claim and there is no doubt to be resolved.
Consequently, the benefits sought on appeal are denied.
ORDER
Service connection for lumbar spine arthritis is denied.
Service connection for right knee arthritis is denied.
Service connection for left knee arthritis, with residuals of
a proximal tibia fracture, is denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs